NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907)
264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CHRISTOPHER WAAGE, )
) Supreme Court No. S-6059/6849
Appellant, )
) Superior Court No.
v. ) 3AN-90-7538 CI
)
CUTTER BIOLOGICAL DIVISION ) O P I N I O N
OF MILES LABORATORIES, INC., )
) [No. 4434 - November 22, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Ted Stepovich, Stepovich,
Kennelly & Stepovich, Anchorage, for
Appellant. Steven S. Tervooren, Hughes
Thorsness Gantz Powell & Brundin, Anchorage,
for Appellee.
Before: Rabinowitz, Matthews, and Compton.
[Moore, Chief Justice, and Eastaugh, Justice,
not participating.]
RABINOWITZ, Justice.
I. INTRODUCTION
Christopher Waage is a hemophiliac who infused "Koate,"
a blood-clotting agent manufactured by the Cutter Biological
Division of Miles Laboratories, Inc. (Miles). Waage sued Miles in
September 1990, alleging that he contracted the AIDS virus from a
batch of contaminated Koate he used in 1983. The superior court
granted summary judgment in favor of Miles, ruling that the
applicable statute of limitations had expired on Waage's claim. We
reverse.
II. FACTS AND PROCEEDINGS
A. Waage's Lawsuit
In 1983 Kodiak resident Christopher Waage was treating
his hemophilia with Koate, a blood coagulant that Miles
manufactured from human blood plasma. In October 1983, Miles
recalled several lots of Koate containing plasma from a donor who
had been diagnosed with AIDS. Miles' letter to Waage's direct
Koate supplier, the Oregon Health Sciences University (OHSU),
stated that "there is no evidence these products will transmit
[AIDS]." OHSU immediately informed Waage of the recall by a letter
which also stated that "[t]here is no indication that anyone who
has infused the [Koate] has become ill. We do not recommend any
special laboratory tests other than the blood samples which are
collected when you come to clinic."(EN1)
By the time he received OHSU's letter, however, Waage had
already used some of the AIDS tainted Koate. As early as 1986 or
1987, Waage began to discuss with family members the subject of his
possible HIV positive status and whether he should undergo testing.
Waage later stated, "Until the test results came back I was worried
about the exposure, . . . but believed due to my generally healthy
physical condition that I was not infected. The longer time passed
the more I was convinced I was not infected." Waage would tell
people "that I may have been exposed [to the AIDS virus], and then
I would just say, 'but I don't have it.' There's a chance in hell
that I have it, you know?"
In October 1987 Waage received a letter from Dr. Lovrien
of OHSU that stated, in part:
Regarding the risk of AIDS. I think that what
is important is whether you feel well or not.
It is most likely that you are probably going
to test as AIDS HIV antibody positive since
most [of] the fellows with hemophilia your age
are positive. However, most of them are not
sick and I think this is important to remember
that the HIV test is just a laboratory test
and does not tell us whether or not you are
sick or not. . . . We will be coming back up
there and we can certainly help arrange for
you to be tested if you like. Another way is
to somehow arrange for you to come down here.
At any rate I think it is important to stay in
touch and let us try to help you in any way we
can.
When Dr. Lovrien came to Kodiak to treat several hemophiliacs,
Waage declined testing.
In August 1988, after injuring his knee in a fall, Waage
saw Dr. Juergens in Kodiak. He was also suffering from
considerable weight loss and night sweats. Juergens informed Waage
that she suspected he was HIV positive, and she suggested that he
undergo HIV testing.
Waage subsequently travelled to Seattle and on August 10
was examined by Dr. Bush. Dr. Bush noted that Waage's weight loss
and feverish symptoms had abated, and concluded that "it is not
imperative to proceed with testing at this time although [Waage]
may benefit from AZT." Waage nevertheless did undergo testing on
September 2, 1988, and tested positive for the HIV virus on
September 3 and on September 9, according to two separate tests
which were administered. Waage claims that he received the test
results in either October or November of 1988.
Waage filed suit against Miles on September 10, 1990,
alleging negligence, products liability, and breach of implied
warranty. (EN2)
B. Miles Obtains Summary Judgment on Statute of Limitations
Grounds
Prior to trial, Miles moved for summary judgment, arguing
that the two-year statute of limitations on Waage's claims had
expired before September 7, 1990. Miles argued that undisputed
facts showed that before September 1988, Waage knew that he was
possibly or even probably HIV positive, and that "discovery of his
HIV status could have been quickly and easily accomplished." Miles
asserted that more than two years before Waage filed suit, he was
in possession of information sufficient to cause a reasonable
person to make inquiries to protect his rights, and that had Waage
inquired, he would have discovered the elements of his cause of
action. In response, Waage argued in part that the statute of
limitations should be tolled on the grounds that Miles had
concealed information about Koate's dangerousness.
The superior court granted Miles' summary judgment motion
and subsequently denied Waage's Motion for Reconsideration. It
concluded that "undisputed facts . . . show that Mr. Waage knew or
should have known of his cause of action more than two years prior
to . . . the date on which the Plaintiff commenced suit." Waage
appeals from this judgment. (EN3)
III. DISCUSSION (EN4)
The superior court granted summary judgment in favor of
Miles based upon its determination that the applicable statute of
limitations had run, barring Waage's claim. The applicable statute
of limitations for tort claims is two years. AS 09.10.070. In
resolving the issues presented in this appeal, it is necessary to
examine the related doctrines of equitable estoppel and the
discovery rule. (EN5)
In Cameron v. State, 822 P.2d 1362, 1366 (Alaska 1991),
discussing the discovery rule as summarized in our earlier opinion
in Mine Safety Appliances Co. v. Stiles, 756 P.2d 288 (Alaska
1988), we said:
This is a formulation of the discovery
rule that will work for most, but not all
cases. Most notably it mentions two accrual
dates: (1) the date when plaintiff reasonably
should have discovered the existence of all
essential elements of the cause of action; and
(2) the date when the plaintiff has
information which is sufficient to alert a
reasonable person to begin an inquiry to
protect his rights. The dates are different,
since the point when the elements of a cause
of action are discovered may come after and as
a result of a reasonable inquiry. The
inquiry, in turn, may be a time consuming
process.
In Mine Safety and in other cases, we
held that the inquiry notice date, rather than
the date when the inquiry should have produced
knowledge of the elements of the cause of
action, was the date from which the statutory
period began to run.[ (EN6)]
Thus, analysis of the superior court's grant of summary
judgment to Miles under our usual discovery-inquiry notice
formulation requires determination of when Waage had information
sufficient to alert a reasonable person to commence an inquiry to
protect his or her rights. We believe that point was reached, at
the latest, in August of 1988 when Dr. Juergens informed Waage that
he was exhibiting symptoms of the AIDS virus and that he should
undergo HIV testing. Therefore, if we were to employ a pure
discovery-notice inquiry analysis, we would affirm the superior
court's grant of summary judgment on this basis, since Waage did
not commence suit against Miles until September 10, 1990.
This conclusion, however, does not end our examination of
the merits of this appeal. A different discovery rule applies
where equitable estoppel has been advanced as a defense to the
statute of limitations. In order to establish equitable estoppel,
"a plaintiff must produce evidence of fraudulent conduct upon which
it reasonably relied when forebearing from the suit." Pedersen v.
Zielski, 822 P.2d 903, 908-09 (Alaska 1991), quoting Gudenau & Co.,
Inc. v Sweeney Ins., Inc., 736 P.2d 763, 769 (Alaska 1987). The
fraudulent conduct may be either an affirmative misrepresentation,
or a failure to disclose facts where there is a duty to do so. Id.
at 909. (EN7)
When equitable estoppel does apply in the context of
alleged fraudulent concealment, we have stated:
In the context of alleged fraudulent
concealment, whether in the form of an action
for deceit or in the context of a claim for
equitable estoppel, the due diligence
requirement involves a determination of when
the plaintiff discovered or reasonably should
have discovered the fact that evidence of a
potential cause of action had been
fraudulently concealed. Once a plaintiff
discovers or reasonably should discover that
evidence has been fraudulently concealed, she
risks losing the protection of equitable
estoppel unless she takes timely action. . . .
The determination of when a fraudulent
misrepresentation or concealment should have
been discovered is a question of fact for the
trial court to decide. However, the standard
imposed on the plaintiff is not the absence of
mere negligence . . . . Where there is an
intent to mislead such a standard would be
"clearly inconsistent with the general rule
that mere negligence of the plaintiff is not a
defense to an intentional tort.". . . Thus,
a party should be charged with knowledge of
the fraudulent misrepresentation or
concealment only when it would be utterly
unreasonable for the party not to be aware of
the deception.
Palmer, 838 P.2d at 1251 (footnote and citations omitted) (emphasis
added). (EN8)
The superior court did not articulate the basis for its
conclusion that the statute of limitations had run. However, by
virtue of the fact that it granted Miles' motion for summary
judgment, the superior court most likely determined either that
equitable estoppel did not apply, or that equitable estoppel did
apply but that Waage failed to satisfy the "utterly unreasonable"
inquiry notice standard for statute of limitations computations in
the context of alleged fraudulent concealment. However, we
conclude that there are genuine issues of material fact both as to
whether equitable estoppel is applicable, and whether Waage's suit
against Miles was untimely under the "utterly unreasonable"inquiry
notice standard.
A. Fraudulent Concealment - Equitable Estoppel
Waage alleges that Miles fraudulently misrepresented and
concealed the relationship between HIV positive status and AIDS as
well as the relationship between Koate and AIDS. (EN9) The record
contains evidence indicating that, in December 1982, Miles knew of
potential AIDS danger from blood products such as Koate. (EN10)
Additionally, there is evidence that Miles minimized the risk of
AIDS in its dealings with treatment personnel and the public.
(EN11) Considering this evidence, we hold that there is more than
sufficient evidence to raise genuine issues of material fact as to
whether Miles fraudulently misrepresented and concealed the
relationship between HIV positive status and AIDS, as well as the
relationship between Koate and AIDS. (EN12)
B. Reasonable Reliance
In order to prove equitable estoppel to prevent Miles
from claiming the two-year statute of limitations as a defense,
Waage must also show reasonable reliance on Miles' alleged
misrepresentation or concealment. We have not required extensive
pleading of facts demonstrating reliance on the fraudulent
concealment or misrepresentation. Palmer, 838 P.2d at 1249. Waage
asserts that he "relied on the misinformation provided by Miles
and/or Miles' failure to provide accurate information." Waage
supports this assertion with evidence that Dr. Lovrien's November
3, 1983 letter to him was based on information from Miles, and that
the letter minimized the risk of AIDS from Koate and recommended no
additional testing (indeed, the HIV test was unavailable then). We
conclude that this evidence is sufficient to raise a genuine issue
of material fact as to whether Waage reasonably relied on Miles'
alleged concealments and misrepresentations. (EN13)
C. Due Diligence
In regard to the defense of equitable estoppel against a
statute of limitations defense,
[w]e have cautioned: "a plaintiff generally
cannot invoke estoppel unless he has exercised
due diligence in attempting to uncover the
concealed facts."
Palmer, 838 P.2d at 1250. Palmer explains, "In the context of
alleged fraudulent concealment . . . in the context of a claim for
equitable estoppel, the due diligence requirement includes a
determination of when the plaintiff discovered or reasonably should
have discovered the fact that evidence of a potential cause of
action had been fraudulently concealed." Id. at 1251. Here there
are genuine issues of material fact as to when Waage should have
realized (1) that there was a sufficiently significant link between
Koate and AIDS to warrant an HIV test and (2) that HIV positive
status was a reasonable indicator of AIDS. As noted above in
Palmer, we explained that the standard applicable to Waage would be
more than "an absence of mere negligence." Id. Rather, Waage
would be "charged with knowledge of the fraudulent
misrepresentation or concealment only when it would be utterly
unreasonable for the party not to be aware of the deception." Id.
(emphasis added). Thus, only if it were "utterly unreasonable"for
Waage to rely on the information and lack of information dispensed
by Miles would Waage be charged with inquiry notice.
In our view there remain genuine issues of material fact
as to the date when Waage should be charged with inquiry notice
(i.e., when it would be "utterly unreasonable"for a person in
Waage's position not to be aware of the deception) of the risks of
AIDS from infusion of Miles' Koate and the relationship between HIV
positive status and AIDS. Our reasons for this conclusion are as
follows. (EN14)
1. HIV Antibody Test
Miles argues that Waage could have discovered his injury
by means of a test on October 1, 1987, which was the date that Dr.
Lovrien advised Waage that he would probably test positive for the
HIV antibody. Waage responds that, because scientific knowledge
prevalent during the 1980s held that an HIV positive test result
did not conclusively indicate the presence of active AIDS viruses
or an AIDS injury, he would not necessarily have discovered the
elements of his cause of action prior to September 1988 even if he
could have determined his HIV status earlier.
Waage did not make this argument to the superior court in
opposition to Miles' summary judgment motion. Nevertheless, it is
appropriate that we consider it on appeal. For example, in Drake
v. Hosley, 713 P.2d 1203 (Alaska 1986), we stated:
It remains the duty of the trial court to
determine whether the record presents any
factual issues which would preclude the entry
of summary judgment as a matter of law. . . .
Here, the trial court record included
affidavits which clearly showed the factual
dispute. Since the factual dispute was fairly
presented to the trial court, the issue may be
raised on appeal.[ (EN15)]
Id. at 1206-07, n.2 (citations omitted).
This same reasoning applies here. Waage presented to the
superior court a letter from Dr. Lovrien to Waage, written in July
of 1987, stating in part, "I think this is important to remeber
[sic] that the HIV test is just a laboratory test and does not tell
us whether or not you are sick or not." Thus since the issue was
fairly presented to the superior court, we consider it here on
appeal.
Today it is generally believed that a person who tests
positive for HIV has contracted the AIDS virus, which is active in
the person's body, and which will presumably lead to the
development of full-blown AIDS. However, the passage of Dr.
Lovrien's letter quoted above indicates that, in the mid-to-late
1980s, it was believed that a person who tested positive for the
HIV virus might have antibodies from the AIDS virus, which would
register during the test, but that such a person would not
necessarily develop a disease. (EN16)
We hold that Dr. Lovrien's letter to Waage raises a
genuine issue of material fact as to whether it was "utterly
unreasonable"for Waage to remain ignorant of the deception (i.e.,
the connection between Koate and AIDS) prior to September 10, 1988.
Given the uncertainty in the state of medical knowledge in the mid-
to-late 1980s, there is a factual dispute as to whether Waage could
justifiably have remained ignorant of his injury even if he had
tested positive for the antibody. Therefore, the superior court
erred in concluding that no genuine issue of material fact existed
as to the issue. (EN17)
2. Other Possible Indicators of AIDS
a. Physical Symptoms
Miles also asserts that Waage should have been on inquiry
notice due to his alleged awareness of AIDS related symptoms.
Miles suggests that Waage's symptoms should have put him on notice
on several dates prior to September 10, 1988. Using the "utterly
unreasonable"standard, we believe that genuine issues of material
fact exist as to whether Waage should have had inquiry notice prior
to that date.
Miles argues that Waage should have been on notice in
August 1988, when he developed a fever, had night sweats, and lost
some weight. However, under the "utterly unreasonable"standard,
we cannot say that such symptoms should have alerted Waage to the
fact that he was suffering from complications of AIDS. Although
these symptoms may be consistent with AIDS, we cannot conclude that
it would have been "utterly unreasonable"for Waage to have
attributed them to some other cause. Additionally, it is not clear
from a review of the record if any physician told Waage that his
symptoms were related to AIDS. (EN18) Therefore, there is a
genuine issue of material fact as to whether Waage should have
known that his symptoms were even consistent with AIDS when he was
examined by doctors in 1988.
b. Thoughts of Litigation
Miles also asserts that because Waage admitted in a
deposition that he had considered litigation prior to September
1988, Waage knew prior to September 1988 that he had AIDS.
However, Waage's deposition is unclear as to whether he had
considered litigation because he knew he harbored active HIV, or
alternately because he thought there was merely a risk that he was,
or had been, infected. Given the "utterly unreasonable"standard,
there is a genuine issue of material fact as to whether Waage's
testimony indicates that he knew he had AIDS prior to September
1988. (EN19)
c. Discussions of Family Members
Finally, Miles asserts that members of Waage's family
suspected that Waage had AIDS prior to September 1988. However,
some of the discussions which Miles refers to only concern whether
Waage should have been tested for HIV antibodies. As we have
observed, we cannot say that such testing would have given Waage
knowledge of his injury due to the question of the state of
knowledge in the mid-to-late 1980s. Similarly, his family's
supposition that Waage would test positive for HIV antibodies does
not speak to the question of what knowledge testing positive would
have given Waage. Also, while Waage's family members suspected
that his symptoms were related to AIDS, as we have discussed, it
was not necessarily clear at the time that they were AIDS related
symptoms.
Thus, given the "utterly unreasonable"standard, we hold
that there are genuine issues of material fact as to whether Waage
had sufficient knowledge for the two-year statute of limitations to
begin running prior to September 10, 1988.
IV. CONCLUSION
We REVERSE the grant of summary judgment, and REMAND this
case for further proceedings not inconsistent with this opinion.
(EN20)
ENDNOTES:
1. In regard to OHSU's recommendation concerning testing we note
that an HIV-test did not exist until early 1985.
2. Waage originally sued OHSU as well. Waage's claims against
OHSU were subsequently dismissed with prejudice.
3. Waage also filed a motion for post-judgment relief. However,
because we conclude that the superior court erred in granting
Miles' motion for summary judgment, we need not consider Waage's
appeal from the superior court's denial of his Civil Rule 60(b)
motion.
4. In reviewing the superior court's grant of summary judgment,
we
must draw all reasonable inferences in favor
of the nonmoving party and may [uphold]
summary judgment only if no genuine issue of
material fact exists and the moving party is
entitled to judgment as a matter of law.
Russell v. Municipality of Anchorage, 743 P.2d 372, 375-76 n.11
(Alaska 1987) (citation omitted).
5. Though we treat equitable estoppel and the discovery rule
independently, it is apparent that the two doctrines are intimately
linked. As we have previously stated,
"a plaintiff generally cannot invoke estoppel
unless he has exercised due diligence in
attempting to uncover the concealed facts."
. . . .
This language does not create a new
factor which must be considered separately
from a "discovery rule"analysis.
Palmer v. Borg-Warner Corp., 838 P.2d 1243, 1250 (Alaska 1992)
(citations omitted).
6. In Cameron we further stated that the statute of limitations
does not necessarily run from the time that a plaintiff has inquiry
notice, but is tolled if "there ha[s] not been a reasonable time to
investigate"between the time a plaintiff acquires inquiry notice
and the expiration of the statute of limitations. Cameron, 822
P.2d at 1366. We also said that Pedersen v. Zielski, 822 P.2d 903
(Alaska 1991), when combined with Palmer v. Borg-Warner Corp., 818
P.2d 632 (Alaska 1990),
added a third part to our discovery rule:
where a person makes a reasonable inquiry
which does not reveal the elements of the
cause of action within the statutory period at
a point where there remains a reasonable time
within which to file suit, the limitations
period is tolled until a reasonable person
discovers actual knowledge of, or would again
be prompted to inquire into, the cause of
action.
Cameron, 822 P.2d at 1367.
7. Thus, when a "plaintiff's delay in bringing suit was
occasioned by reliance on the false or fraudulent representation"
of a defendant, equitable estoppel is proper to prevent the
defendant from claiming the statute of limitations as a defense.
Palmer, 838 P.2d at 1247. The elements of a fraudulent concealment
and equitable estoppel claim are a fraudulent concealment,
justifiable reliance, and damage.
8. Waage did not specifically argue the "utterly unreasonable"
standard to the superior court in opposition to Miles' summary
judgment motion. However, Waage did mention equitable estoppel,
and also specifically noted that, when the doctrine applies, "Miles
cannot now rely on the negligence of the plaintiff in failing to
discover all the elements of his cause of action."
9. As to the former, the problem with Miles' assertions is that
Miles stated affirmatively that if a person tested positive for
HIV, the person would not necessarily develop AIDS. This could be
considered a misrepresentation if Miles knew or should have known
that it was scientifically unknown whether all those with HIV would
get AIDS, and nonetheless represented that not all with HIV will
get AIDS as if this were a known fact. Stating or implying that
you have knowledge when you are aware that you don't have this
knowledge constitutes misrepresentation. This type of
misrepresentation is, of course, directly related to the statute of
limitations issue, since such misrepresentation would have a
natural tendency to deter litigation. In other words, those who
have HIV, but not AIDS, would have little incentive to sue because
they hope and believe there is a good chance that they never will
be damaged.
10. A December 3, 1982 letter from the Centers for Disease Control
(CDC) to a Miles employee included a report stating, "continuing
reports of AIDS among persons with hemophilia A (7) raise serious
questions about the possible transmission of AIDS through blood and
blood products." A December 13, 1982 internal Miles memorandum
stated, "[a]lthough the transmission of AIDS via blood products
(and specifically AHF) has not been conclusively demonstrated,
there is some evidence that a possibility does exist." A December
21, 1982 memorandum established a "course of action"to address the
problem. A December 29, 1982 memorandum recommended warning
customers about AIDS and warned that "litigation is inevitable."
A January 5, 1983 internal memorandum summarized a hospital meeting
including the following question from the audience and response
from a CDC doctor: "Q: Does taking concentrates transmit AIDS? A:
Dr. Auerbach: Presumably yes . . . ." In January 1983, an employee
of Miles attended a meeting and recorded in his notes that a
representative from the CDC in Atlanta was "convinced [that AIDS]
is transmitted as an agent thru [sic] sexual acts and blood and
blood products." A January 27, 1983 memorandum stated that one of
Miles' plasma donors was suspected of having AIDS. A February 10,
1983 memorandum noted that six hemophiliacs had died of AIDS, about
fourteen had the disease, and about ten were "listed as
'suspected.'" A February 17, 1983 letter from Miles to its blood
plasma centers answered questions such as "[w]hy are we screening
our donors for AIDS?"by stating, "[b]ecause it has been reported
that eight or more hemophiliacs have contracted AIDS. The evidence
suggests that blood or blood products they have used may have been
involved in the transmission of the disease." An enclosed poster
for display at the plasma centers stated that "ACQUIRED IMMUNE
DEFICIENCY SYNDROME (AIDS) is a disease that may be transmissible
through plasma products."
11. In this regard, the following is relevant: An October 1983
letter to treatment centers accompanying recall said in part,
"there is no evidence that these products will transmit the disease
[AIDS]." Though Waage does not assert that he ever saw this
letter, he argues that Dr. Lovrien (a doctor at the treatment
center) relied on the information he received from Miles when he
wrote the following letter to Waage:
The cause of AIDS is not known, but if the
disorder is caused by a virus-like substance,
it seems wise to prevent exposure to plasma
donated by AIDS patients. Many hemophilia
patients have been infused with the Koate
which you have used. There is no indication
that anyone who has infused the medicine has
become ill. We do not recommend any special
laboratory tests . . . . If we receive further
information from the Cutter Company . . . we
will send any important notices to you.
12. It is not necessary for Waage to show that Miles distributed
false information; it is sufficient if the proof shows that Miles
failed to fulfill a duty it had to distribute information. In such
cases, as we explained in Palmer, "parties ■rely■ on an absence of
adverse information . . . ." Palmer, 838 P.2d at 1250. The rule
governing failure to disclose is "mere failure by a person to
disclose a fact concerning a cause of action which arises against
him does not suffice to toll the statute unless the defendant owed
a duty of disclosure." Russell v. Municipality of Anchorage, 743
P.2d 372, 376 (Alaska 1987). Palmer explains that this duty may
arise from governmental regulations. Palmer, 838 P.2d at 1250
n.10. Waage argues that federal regulations which impose a duty to
warn of potential safety hazards in drugs by labeling, serve to
create a duty on the part of Miles. Here Waage's showing that
Miles knew more about the hazards of Koate and the connection
between HIV and AIDS than it disclosed raises genuine issues of
material facts as to Miles' alleged fraudulent concealment.
13. Waage will have to show that because of Miles' failure to
disseminate information about the dangers of Koate and AIDS, he was
unaware that he was injured and, as a result, did not undergo an
HIV test.
14. Miles' brief does not address the "utterly unreasonable"
standard. Rather, Miles' arguments proceed from the assumption
that the regular discovery standard applies in cases of equitable
estoppel, stating, "[o]nce a plaintiff discovers or reasonably
should have discovered that evidence has been fraudulently
concealed, the plaintiff risks losing the protection of equitable
estoppel unless he takes timely action."
15. See also American Restaurant Group v. Clark, 889 P.2d 595, 598
(Alaska 1995).
16. We note in passing that other jurisdictions have considered
this issue. See Doe v. American Red Cross, 874 P.2d 828, 833 (Or.
App. 1994) ("the correlation between HIV and AIDS, as they were
understood in 1988, was not nearly as strong as it is today"),
aff'd on other grounds, 910 P.2d 364; New v. Armour Pharm. Co., 58
F.3d 445, 450 (9th Cir. 1995) (applying California statute of
limitations, finding that "[i]n 1988, [plaintiff who tested
positive for HIV] could not have known that he surely would get
AIDS"); Seitzinger v. American Red Cross, Nos. 90-0046 and 90-3890,
1991 WL 88023 *5 (E.D.Pa. May 21, 1991) ("Although it is presently
known that HIV infection . . . ultimately causes the death of many
persons so infected, this was not the state of knowledge during
1984 through 1988. Instead, during this time period, over ninety
percent of infected persons were thought to be immune to the
virus.").
17. Miles also asserts that the statute of limitations should have
begun to run in early August 1988, when Dr. Juergens told Waage
that she suspected he was HIV positive, and suggested that Waage
undergo HIV testing. Miles argues that Waage's "personal decision
not to conduct [an] inquiry"until the following month "did not
serve to further delay commencement of the limitations period." We
disagree. There is a genuine question of material fact as to
whether the consultation made it "utterly unreasonable"for him to
remain ignorant of the deception.
18. Though the parties do not discuss it at any length, Dr. Bush
wrote in his notes that Waage "may benefit from AZT." AZT, of
course, is a drug commonly used to combat the AIDS virus. The fact
that Dr. Bush favored AZT treatment implies that he believed that
Waage had the AIDS virus as of August 10, 1988. However, again,
the record is unclear as to whether Dr. Bush actually communicated
to Waage his belief that Waage would benefit from AZT or why he
thought so. Therefore, we cannot definitively state that Waage had
inquiry notice as of August 10, 1988. That is, there is an issue
of material fact regarding even the August 10 consultation with Dr.
Bush.
19. In his deposition Waage stated that "everyone's saying, 'you
look like you've got AIDS, man' 'cause I was so skinny, and my
pants were falling -- literally falling off of me, 'cause I was so
skinny." Regarding this testimony, we note that there is no
mention of it in Miles' briefs. Additionally, we do not think that
this testimony, even when taken in conjunction with the other
evidence discussed above, makes it "utterly unreasonable"for Waage
not to have discovered his injury. These comments apparently were
made by laypersons without medical knowledge of the symptoms of
AIDS. Moreover, the comments were apparently prompted by Waage's
slight weight. Waage testified that, at some point, he had
suffered a knee injury which made it difficult for him to eat. In
light of this evidence, if the comments were made at approximately
the same time as Waage's knee injury, it may have been reasonable
for Waage to disregard the comments to the effect that his weight
made him appear to have AIDS. Finally, we note that it is unclear
when these comments were made. Waage's testimony indicates that,
due to the comments, he left Kodiak but does not specify when he
departed. Therefore this portion of Waage's deposition testimony
does not alter our conclusion that there exists a genuine issue of
material fact under the "utterly unreasonable"standard as to
whether or not Waage knew he had AIDS prior to September 1988.
20. Our disposition makes it unnecessary to address any other
issues in this appeal.
Although this appeal was recently dismissed by this court
pursuant to a stipulation of the parties, we have decided to
publish this opinion given the significance to the public, bench,
and bar of the discovery and statute of limitations issues raised
by this appeal.